Citation Nr: 1528528
Decision Date: 07/02/15 Archive Date: 07/15/15
DOCKET NO. 12-03 862 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Reno, Nevada
THE ISSUE
Entitlement to service connection for sleep apnea.
WITNESSES AT HEARING ON APPEAL
The Veteran; the Veteran's Wife; the Veteran's Acquaintance
ATTORNEY FOR THE BOARD
W. R. Stephens, Associate Counsel
INTRODUCTION
The Veteran served on active duty from August 1966 to August 1970.
This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada.
The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a July 2012 videoconference hearing. A copy of the transcript is associated with the file.
The issues of entitlement to service connection for posttraumatic stress disorder, headaches, and a right foot condition have been raised by the record in a January 2015 statement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014).
The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA and VBMS systems to ensure review of the totality of the evidence.
The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required.
REMAND
After having carefully considered this matter, the Board believes the Veteran's claim must be remanded for further development.
Since the Veteran's December 2011 VA examination, the Veteran has asserted that his documented in-service headaches were a symptom of his currently diagnosed sleep apnea. A new opinion is necessary in order to address this contention. The Veteran also suggested at his videoconference hearing that diagnoses of sleep apnea were not generally made until the 2000's. The opinion should address how this claimed change in medical treatment and diagnosis of sleep apnea may be relevant to the Veteran's claim.
Additionally, the Veteran and his wife testified at his July 2012 videoconference hearing that the VA examiner told them that she did not review his claims file. While the Board notes that the VA examiner indicated on the examination report that she did review the Veteran's claims file, the Board acknowledges the concern of the Veteran and his wife.
Accordingly, the case is REMANDED for the following action:
1. Contact the Veteran and request that he identify any additional medical treatment he has received for his sleep apnea. Take appropriate steps to secure copies of any such treatment reports identified by the Veteran which are not in the record on appeal, to include updated VA treatment records. Efforts to obtain these records should also be memorialized in the Veteran's VA claims folder.
2. Return the claims file to an examiner of appropriate knowledge and expertise. It is up to the discretion of the examiner if a new examination is necessary. An opinion regarding the etiology of the Veteran's sleep apnea should be issued.
All appropriate tests and studies should be performed and all clinical findings reported in detail. The claims file and a copy of this Remand must be made available to and be reviewed by the examiner in conjunction with the examination. The examination report must indicate that the claims file was reviewed in conjunction with the report. Specifically, the examiner should indicate that he/she reviewed the lay statements submitted by the Veteran. Additionally, the examiner should elicit from the Veteran a history of symptoms relating to his sleep apnea.
Based on a review of the claims file and the clinical findings of the examination, the VA examiner is requested to provide an opinion as to:
Whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's sleep apnea was sustained during service, or, is etiologically related to an injury or illness sustained by the Veteran during his active duty service.
The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.
A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation.
The examiner should address the Veteran's contention that his in-service headaches were a symptom of his sleep apnea. Additionally, the examiner should discuss the Veteran's contention regarding the medical history of sleep apnea, including his contention that sleep apnea was not diagnosed as a medical condition until the 2000's, and how this may be relevant to the Veteran's claim.
3. After the requested records review and opinion are completed, the report should be reviewed to ensure complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the reviewing personnel. See Stegall v. West, 11 Vet. App. 268 (1998).
4. After undertaking any other development deemed appropriate, the RO will re-adjudicate the issues on appeal. If any benefit sought is not granted, the appellant and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).